From big issues to daily detail: copyright in all its glory

While the big issues continue to preoccupy copyright analysts and policy-makers, it's good to be reminded occasionally that the facts on on the ground reflect an ongoing battle between those who seek to make money out of copyright and those who seek to avoid paying.  The case below is an interesting one in that regard: do we have a noble user here, unfairly restricted by the exploitation of outmoded rights and antiquated business models, or a grubby, undeserving fee-dodger? The decision is yours.

Federation Against Copyright Theft Ltd v Stanley Ashton is a Divisional Court, England and Wales, decision of a two-man team (Lord Justice Laws and Mr Justice Irwin) which comes to this blogger via a note published on the useful Lawtel subscription-only service. The twosome were hearing an appeal by way of case stated against a decision of a district judge to dismiss the information laid against Ashton which alleged that he had committed offences contrary to the Copyright, Designs and Patents Act 1988 (CDPA), s.297(1).

Ashton was a premises licence holder and the designated premises supervisor of a social club. Each of the three informations alleged that. on three occasions. he had dishonestly received a B/Sky/B broadcast of a premiership football match, provided from a place in the United Kingdom, with intent to avoid payment of a fee in accordance with a non-domestic viewing agreement, contrary to s.297(1). The magistrates' court found that Ashton's club was a members-only establishment and that he had entered into a non-domestic television contract with BSkyB to show its live programmes in the licensed area of the club over two periods; however, the contract was terminated each time by BSkyB for non-payment of the monthly subscription fee.

Investigators had visited the club four times and Ashton was advised that he had to have the correct contract if he was going to show BSkyB broadcasts. Ashton accepted that the TV and projector in the licensed area were showing pictures of premiership football games which BSkyB had exclusive rights to show. He had a residential Virgin Media package which included Sky Sports Live, for his residential flat which was handily located the licensed area. The parties accepted that there was a substantial price difference between the monthly subscription for BSkyB for domestic and non-domestic customers. Ashton maintained, relying on the unreported decision in Federation Against Copyright Theft Ltd v Gabriel, 23 August 2012 to support the proposition that the prosecution had to prove that a defendant must not have paid any charge for the programme which was received. The court concluded that Ashon did make payments via his Virgin Media contract -- which included Sky Sports -- and acquitted him.

On appeal the questions were these:

• did s.297(1) proscribe the reception of a programme in circumstances, where within the UK, (i) a person (X) subscribed to a company (Y) which was only entitled to provide programmes for domestic use; and (ii) Y provided those programmes at a charge which was lower than the charge applicable for their reception in non-domestic/commercial premises; and (iii) X knew that the price charged by Y was lower than the charge applicable for the reception of the programmes in non-domestic/commercial premises and X also intended to avoid payment of the higher charge; and (iv) X knew that the higher charge was payable to another company which had exclusive rights to broadcast the programmes in non-domestic/commercial premises?
• was the magistrates' court right to find that the payment for the " domestic use only" service to Virgin Media in those circumstances was the payment of any charge applicable to the reception of the programmes in commercial premises?
• having regard to the evidence that was agreed and the live evidence called, was there any evidence to support the conclusion that Ashton did make payment to BSkyB via his Virgin Media contract which included Sky Sports Live?

In an extempore judgment that has not found its way on to BAILII the court allowed the appeal, returning the case so that the magistrates; court could ascertain whether Ashton was acting dishonestly or not. According to the Divisional Court:

• Under s.279(1) a person who dishonestly received a programme included in a broadcasting or cable programme service provided from a place in the UK with intent to avoid payment of any charge applicable to the reception of the programme committed an offence.
• The Murphy v Media Protection Services cases did not assist as they did not address the situation of where a programme could be obtained from two providers.
• It seemed highly improbable that Parliament, when enacting the provision, did not have in mind the difference between domestic and commercial use.
• The phrase "any charge applicable to reception" did not require such a narrow interpretation as that given to it by the magistrates' court and it had to be read as a whole. Section 297 was a penal provision and could not be given such a narrow interpretation. He had also erred in holding that payment made by S to Virgin Media amounted to a payment to BSkyB.